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NSA Defender Explains How Even Though NSA Spies On Americans, It’s OK To Say They Don’t

Orwell Would Be Proud

By Mike Masnick | Techdirt | February 6, 2014

Benjamin Wittes of the Brooking Institution has become the go-to non-government NSA apologist. One of his most recent articles is a true work of rhetorical artistry, in which he tries to explain why saying “the NSA doesn’t spy on Americans” is acceptable shorthand for the fact that the NSA spies on pretty much every American. It’s a master class in political doubletalk. First, it’s the law’s fault. The law, you see, is too complicated for mere mortals not working for the NSA to understand, so that makes it okay to lie:

The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.

Any effort to summarize the relevant law necessarily ignores themes sufficiently important to its architecture that the reductionism will partake of serious inaccuracy. The person who told my friend that NSA does not spy on Americans was not lying. He or she was highlighting a crucially-important limitation on NSA’s authority vis a vis US persons. The law and the relevant regulations all contain significant territorial restrictions and significant protections for US persons overseas as well—all designed to separate the foreign intelligence mission of NSA from both domestic intelligence and domestic law enforcement. It’s a sincere and pervasive effort. “We don’t spy on Americans” is a common shorthand for a wealth of law and practice that really and meaningfully keeps the agency out of the business of being a covert domestic intelligence agency.

Got that? Because there are some limitations on all the spying they do on Americans, and it’s too complicated to understand those limitations, so it’s okay to lie and say they don’t spy on Americans. Of course, in the very next paragraph, Wittes tries to effectively brush away the massive amount of surveillance done on Americans.

NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information. In other words, to say that NSA does not spy on Americans emphatically does not mean, as a reasonable student or citizen might expect it to mean, that the agency does not regularly acquire and process the communications of Americans.

Of course, as Jameel Jaffer from the ACLU points out, this is all nonsense because it’s a simple fact that the NSA does do surveillance on Americans, and to claim otherwise is not acceptable shorthand. It’s a lie. And while Wittes then tries to obfuscate things even more by trying and purposely failing to come up with a concise way of summarizing what the NSA does, Jaffer helps out with a few workable suggestions:

This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.”

Jaffer further points out that Wittes’s suggestion that those who claim the NSA doesn’t spy on Americans are really trying to tell the truth through shorthand, is actually misleading. As Jaffer points out:

Any official who says the NSA isn’t spying on Americans is seeking to mislead.

And anyone defending that statement is trying to support that fundamental attempt to mislead.

Related articles

• Yeah, but What Does Jameel Jaffer Really Think?
• The Problem at the Heart of the NSA Disputes: Legal Density

February 6, 2014 Posted by aletho | Civil Liberties, Deception, Full Spectrum Dominance | Benjamin Wittes, Jameel Jaffer, Mike Masnick, National Security Agency, NSA, United States | Leave a comment